Sunday, July 12, 2009

A note on Dirty Words

Mark Graber

Balkinization readers might be interested in the following proposed footnote for the discussion of FCC v. Pacifica Foundation in Gillman, Graber and Whittington, AMERICAN CONSTITUTIONALISM.

For the transcript of Carlin’s broadcast, see For Carlin’s original “Seven Dirty Words” routine, see Most professors, eager to demonstrate what they perceive of as the silliness of FCC restrictions, gleefully repeat these words when writing or lecturing about Pacifica. The coeditor of this text responsible for this excerpt (Graber) does not and did not include any of the words in the headnote to this case. He believes, perhaps mistakenly, that at the turn of the twenty-first century, teaching students by example that some people still find these words and the Carlin routine offensive (and not particularly funny) is more important than desensitizing students to words he suspects most of them use quite regularly.

So, gentle readers, in 2009, which is the better pedagogical strategy. I have deliberately enabled comments in the hope of enlightenment on this subject.

[Type the rest of your post here.]


some people still find these words and the Carlin routine offensive (and not particularly funny)

I can't think of a single reason why those "some people" should get to decide what words the rest of us read or hear. Nor why any textbook should reinforce their censorious behavior by submitting to it.

I am not sure this can be right. When writing a text, my coeditors and I by necessity determine "what words the rest of us read or hear" (an amusing variation--I am not fond of "it" constructions, so "it" almost never occurs in the passages I write.

whether or not you find the words and carlin's routine funny or offensive should be irrelevant for this inquiry. regardless of whether or not you approve of the use of the "seven words", the fact remains that to fully and comprehensively discuss the impact of the court's decision, one would have to have ready reference to carlin's routine, or at least gamble that your readers know the routine by heart. that way the delivery of the words, the context, etc. can be fully appreciated in the context of the court's decision, and the decision itself can be better understood, regardless of whether or not you find the routine funny, either then or now.

I don't know what the relevancy of the "teaching students by example" has to the decision suggested here. Offensive words at times are relevant. Readers of Mark Twain would tell you that. What apparently bad "example" is being taught?

The "gleefully repeat" citation suggests the professors use the words in an 'in your face' way. Given Prof. Graber has expertise in this area, I will just say that I myself need more evidence that this is the case here.

The words underline the problems with interpreting the meaning of "indecent." I don't know if headnotes in casebooks generally go into much detail as to the facts generally. So, maybe the use of the words would not be appropriate.

But, given the very legal issue in question, I don't see the point of making some sort of "pedagogical" exception here. If the students use them so regularly, I also don't know how the use in a case directly involving them would really "desensitize" them anyway.

Anyway, the use of the words should be in the excerpt itself in some fashion.

BTW, another participant in this blog has opposed the policy of the NYT etc. to not say the words in question when discussing cases of this nature. I wonder what his take is on this issue.

Mark Graber includes in his response to Mark Field's comment:

"When writing a text, my coeditors and I by necessity determine 'what words the rest of us read or hear' . ..."

In Graber's et al text on Brown v. Board of Education, might he and his coeditors determine that we not read "With all deliberate speed."? Or are those words too important to understanding Brown and its progeny? Perhaps Carlin's 7 words are critical to understanding Pacifico. After all, there are a lot more than 7 dirty words. But Carlin chose these for a reason, repeating them, to make his point.

I am not sure this can be right. When writing a text, my coeditors and I by necessity determine "what words the rest of us read or hear"

Your decision in the textbook affects whether we get to see or hear the words at that particular time. What the "some people" are attempting to do is ban those words from discourse at all times. By acceding to that demand even in small part (which is how I interpreted your post -- correct me if that's wrong), a textbook contributes to their goal. Since the whole point of Carlin's routine was to mock both the goal and the enforcement of it, phg's point is spot on.

I can't imagine teaching Cohen v. California without mentioning the elephant in the room (the phrase on his jacket which, in deference to author's sensibilities in this post, I won't mention here). Yes, curious students will be able to find the words by following the footnote, so this is hardly a disaster, but it does seem to me that since they are the specific subject of the suit, it is probably appropriate to include in the text ... either as a direct quote from the case itself, or in a footnote.

Actually, I should add that the far more difficult thing to teach now is how and why these words were seen as so shocking and offensive in their time. Our public discourse has become so coarse now, that far from offending students with these words, the authors might consider a footnote that helps students understand why these were so shocking that they could even generate a court case.

Funny, the host of the original routine currently suffers from a network timeout. Now who's deciding who reads what? Conveniently, we can off-load the responsibility to technology.

How old are the students you expect to encounter this footnote? Four? Eight? Or, say, 25? And why care whether they're offended? Studying law--or practically any modern enterprise--one ought to be bold enough to expect and deal with offense. I was mightily "offended" when I read Holmes in Buck v. Bell, if my refusal to forgive the blowhard for his (usual) pompous pronouncements is any indication of a degree of offense taken. (In fact, you might say I haven't dealt with it, but that's my problem.)

A great deal of the point of Carlin's routine is that by repeating and discussing the words, he exposes them as "just words," stripping them of their cultural meaning, offensive or otherwise. Omitting the actual words makes what he said more offensive, not less so, because it calls on the imagination to evoke the forbidden.

I think that both strategies -- saying the seven words and including a explanation about why the seven words are not being said -- suffer from the same defect. They are both overly self-conscious. I would instead follow Gordon Silverstein's suggestion. Document the fact that this language was far more scandalous when the case was decided. I might also speculate on how much free speech litigation like FCC v. Pacific had to do with changes in mores between then and now.

I disagree that the seven dirty words were far more scandalous in 1978 than they are today. The late 1970s were not the dark ages. Christian fundamentalists played a smaller role in our discourse then; ex-hippies played a larger role. The Supreme Court's 5-4 decision in Pacifica was viewed as ludicrous by many, who observed that the Supreme Court had missed the point of Carlin's routine by taking the words seriously. The decision had no constitutional basis, as the Court applied no standard -- strict scrutiny, rational basis, or an intermediate standard; rather, Justice Stevens, writing for the majority was simply offended by the words, which he compared to a pig in a parlor instead of a barnyard. Today, however, the prohibition is still taken seriously by the FCC and the Supreme Court. We are not more enlightened today.

(Jack blocks comments on his posts, but I thought his latest one was too important not to support even at the cost of sneaking it in here)

Jack has a very important but rarely disscussed point about this whole FISA/CIA/FBI/DHS/NSA situation. In a nutshell his point is - the ball is now in Congress as critically as ever. In other words effective oversight of the national security apparatus is as badly needed now as it has ever been.

Please Mr. Leahy, Schumer, Specter, Whitehouse, Feinstein, etc.


The Obama administration is IMHO unquestionably great, a fresh breath of air after those godawful eight years of Cheney/Bush suffocation, but personally I think they are underestimating the willingness of the country to forget their predecessor and that's because their trespassings - Yoo's/Cheney's//Gonzo's/Addington's/Bybee's/Bush's/CIA's - were far too serious to just forget it, their arrogance and their willingness to manipulate the system, the constitutional order far too gross to tolerate. Something needs to be done, we owe it to ourselves. That ugly Chenian/Bushian boil needs to be lanced, and lanced for good, needs a silver bullet, because it is continuing to fester.

Mr. Cheney said the attack was a reminder that terrorists seek "to question the authority of the central government," and argued that it underscored the need for a renewed American effort. so it is likely people demanding some accounting or more meaningfull oversight (Balkin, undersigned) will be labelled unrealistic, terrorist even (Leahy truly must be a terrorist in Cheney's eyes) but do we really care what they say anymore?

Do we?


Personal appeal to Mr. Obama, please read Wikipedia entry on the treatment of Abu Zubaydah and assure us that CIA atrocities described there are not continuing under your watch. Please.

wg, a boil needing to be lanced is not helpful as a metaphor to explain why the Bush administration criminals should be prosecuted. The strongest reason to prosecute them is the forward-looking reason of deterrence. If there is another 9/11-type attack, the American people may be frightened enough and stupid enough to buy Cheney's line that Obama's refusal to torture put us in danger. If torture advocates are ever elected again, then, if they are to be deterred, they must see Bush, Cheney, Yoo, Bybee, Addison, and others in prison. And Obama should be called on it every time that he dishonestly refers to prosecutions as looking backward.

Sandy Levinson recently posted somewhere that he is glad he no longer teaches Civil Liberties because he feels that proper pedagogy on the obscenity cases requires a review of the evidence. That would mean showing portions of the relevant (allegedly) pornographic film at issue. If one adopts this pedagogical viewpoint, then it become imperative to play a recording of Carlin. How else can one determine (judge?) whether or not there is a redeeming social value?

I have made it a habit to play a 7 minute clip of Carlin's monologue from “Class Clown.” I do think the class discussion is different than it would be otherwise. Virtually everyone thinks it is funny, but when the discussion comes to broadcasting it, then the class is usually split, and troubled. I doubt I would get as strong a reaction without playing it. I also ask the students at the end of the class whether they think it is important to hear the recording to understand the case. Most say yes (and I believe them).

But I will admit I am chicken when it comes to applying this principle to pornography – it would make me uncomfortable.

I teach to undergraduates – but I am undecided as to whether this makes a difference. I am not training lawyers, but introducing students to some of the intersections of politics with the law. But I still want to be cognizant of how portrayal of facts can impact both.

Lack of serious literary, artistic, political, or scientific value (not redeeming social value) is necessary for pornography to be obscene. George Carlin's routine was not alleged to be obscene; it was alleged to be indecent, and its having serious literary, artistic, political, or scientific value does not preclude a finding of indecency.

I watch the TV series "Two and a Half Men" and wonder how its content compares with George Carlin's 7 dirty words and Politico's decision on the latter. As I noted in an earlier comment, there are many more dirty words than Carlin's 7. While 2 1/2 Men avoids those 7 words, its content in effect brings them into play. I'm not suggesting 2 1/2 Men should be censored or censured by FCC, as I enjoy the series. It is of course for adults, although 9:00 PM is still early enough for youngsters to watch. My point is that Politico went overboard. Carlin may not be a Mark Twain, but if the twain were to be together - either in heaven or in hell - when my time comes, I want to be in their audience.

Two of the words surely could be said now on broadcast television.

As to the sitcom referenced, reminds me of Justice Stevens' referencing certain ads now shown during 'family friendly' hours in the ruling concerning "fleeting expletives," which tellingly didn't use the words.

BTW, I'm a bit unsure from the comments about the original post. The post spoke of "headnote to this case." Does this mean the WHOLE EXCERPT also doesn't use the words? I took "headnote" to mean something like the introductory comments found in casebooks before the excerpt.

Conflates "get to hear" with "have to hear"; likewise "get to say" with "have to say" although to a lesser extent.

I'm dubious you can succeed with the tougher issues of "who decides" and "on what basis" if you conflate the basics. E.g. a right to say balanced against a right not to have to hear; a little conflation destroys the question.

It's nice that our input is asked for here.

Cf. A blogger here -- sans comments to provide an alternative p.o.v. -- suggesting Justice Ginsburg's comments in an interview were "odd and even offensive."

Comments might provide a chance for a different perspective. Since the person found it so "odd," it might even be informative.

Perhaps only as a woman [of a certain age]I still find one of those words deeply offensive. Still, I think the words should be included in teaching/the text.

I'm more puzzled by this line: teaching students by example that some people still find these words and the Carlin routine offensive (and not particularly funny)
Is that Prof Graber's intention in teaching about this case?

To add to Joe's comment (two above this one), the blogger, David Stras, actually asks, "am I missing something in interpreting Justice Ginsburg's statement as [I am]?" Perhaps his failure to allow replies was inadvertent and will be corrected.

Responses are numerous enough to warrant a suspicion that q and a are both strongly affected by gender. Count 'em up and I think you'll find that you have elicited a lot of male defensiveness over the ostentatious use of the words in a classroom setting. My experience is that male teachers risk being seen to enjoy teaching the case that way by male students who love it, while females generally find such lessons exemplify slightly sublimated boyish exhibitionism. Female instructors risk being seen as showing (off) their ability to navigate in a male environment. It is more effective, IMHO, to put a frame or link around the routine, and speak of it "academically"..

I would just like to note that it has been one month since anyone has enabled comments on this site. I, for one, applaud this new policy. Freedom of speech is great in the abstract, but in practice not so much.

As Mr. Pasquale explains in his latest post, people should not be allowed to express an opinion about health care if they dont even understand "DRG's, risk-adjustment, and parallel public-private systems of health care provision." This would be like letting people express an opinion on the Iraq war without having read the counterinsurgency manual.

Plus, regular people tend to express their ideas in exaggerated and inflammatory ways. Thats why Mr. Pasquale properly refers to the town hall attendees as "political terrorists."

Anyway, there is really no need for us to comment on the posts here at Balkinization, which are only giving us objective facts, not like the disinformation you get from talk radio and CBO.

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